We are a PUBG crazy generation. Did you ever wonder what protection should a game developer attain, copyright or trademark to protect his intellectual property in the game? Can there be PUBG shirts and merchandise that sell in hundreds of thousands? How will the game producers benefit from the same?
What makes Apple the richest company in the world? According to research, a 32GB iPhone 7 that retails for $649 costs Apple only $219.80 in components, with manufacturing adding just $5 to the price. Have you ever wondered how does it earn the rest of the money? It’s on account of the intellectual property of course. What makes Apple Inc. the biggest brand in the world?
China is far bigger in manufacturing. India has more engineers. There are more resources in Africa. Russia has more natural gas and oil. However, U.S.A is richer, and a superpower, because it has more intellectual property than any other country.
Every time we buy a mobile phone, watch movies or search online, entities from the U.S.A earn money thanks to intellectual property.
Intellectual Property is a valuable asset class in itself.
India and the entire world is now waking up to the potential of intellectual property. And intellectual property lawyers are now very sought after.
I assume that you are reading this article because you are interested in intellectual property law as a career at some level. Let me give you a detailed picture which may help you to decide for or against, or to simply assess the opportunities.
IPR is a recession proof career
Experts expect a global recession to hit us soon. You need to be very careful now about the career choices you make. Is IP a good career choice in the current global or country-specific economic environment?
Innovation and inventions are part of human development, and therefore intellectual property lawyers will always be needed to protect ideas and ownership of inventions. Even if some law practices are affected by the recession, such as investment law, property law or capital market, the field of intellectual property law will continue to grow.
Economies like India can grow now significantly only on the back of intellectual property development. Apart from that, enforcement of intellectual property within the country, which has become a major market, is also critical and generates a massive amount of work for lawyers.
Also, as India has been shifting from informal to the formal economy over the last decade and the trend is expected to continue over the next decade, businesses will be registering and enforcing trademark, copyright and even develop patents.
Communities have begun to wake up to the potential of geographical indications and other sui generis protections for community intellectual properties and indeed there are some amazing activities in terms of IP related legal work.
The major clients of IP lawyers
While every industry requires a lot of IP related support, there are three that run up the biggest bills. They are the biggest clients of IP lawyers. The top one is the Media and Entertainment industry. The second in the technology industry. And finally, biotechnology is also a major industry that depends a lot on IP lawyers.
Apart from these three, fashion, sports and pharma are the next three big clients of IP lawyers.
What kind of work do IP lawyers do?
Contracts Negotiation and Management
IP lawyers advice on exploiting your IPR commercially. Qualcomm collects the majority of its revenue of around 11 billion US dollars from selling licenses of its mobile processing chips. An army of lawyers have to work on not only those licensing agreements but enforcing patents, engage in patent wars with major telecom manufacturers and even on monitoring services across the world.
Law schools will teach you the difference between an assignment and license but that’s not enough. What happens when the copyright is assigned on a perpetual basis and the assignee fails to exercise his rights? Or how do you stop unlicensed players across the world from stealing your IPR? Once they are cornered by your enforcement lawyers, what kind of settlement agreements do you enter into?
Whether it be franchising a new outlet for McDonald’s or getting into a character merchandising agreement for selling merchandise and toys of your favorite Marvel movie, transferring IPR through commercial arrangements forms the basis of exploitation of IPR for value creation.
Do you know what kind of non-standardised clauses are specific in IPR agreements? How will you negotiate a limitation of liability clause? How do you determine the level of diligence required for negotiating a disclaimer clause?
The most common agreements you must learn if you are working as an IP lawyer would be assignment agreement and licensing agreement. These are like bread and butter for most IP lawyers. There are of course many other complicated IP contracts.
Apart from contracts, there would be a bunch of other drafting too. Lawyers have to learn how to draft even emails. Ask the lawyers who screwed up by writing a mail in the wrong language.
Issuing cease and desist notices, takedown notices are pre-litigation enforcement mechanisms which IPR lawyers must know. They may also have to draft litigation documentation as well as applications for registration of IPR that must be done very carefully.
I hope you are realizing the gap between theory and practice coupled with the huge learning and training opportunity available to law grads and young IP professionals alike.
Registration of IPR
The market for IP registration has become extremely competitive making profit margins thinner. Only patent registration can still be considered premium work. Registration of copyright or trademark is not so profitable anymore.
There are online service providers charging from Rs. 2000 – Rs. 5000 for a single class trademark registration application excluding regulatory fees. However, there can be more money making opportunities in objections, oppositions and other procedures when these applications run into trouble, often because they were drafted by less competent people.
While registration of IP has become a volume game with very low margin, licensing, assignments, objections, oppositions, litigation and related work have massively increased in volume over the years too, turning IP law into an ever more lucrative profession.
That’s the deep end of the pool, however, and highly skilled lawyers who can deliver results tend to do better in IP law.
You all get fascinated by the JK Rowling rags to riches story. Harry Potter is a great success story of a brand built around a character and a story later made into movies. IPR attorneys play an important role in creating strategies to bring your brand to the marketplace and figure out new ways to generate revenues from the brand. They also help to put in place agreements and commercial arrangements and enforce IPR so that a brand’s value is not diluted.
For example, an Indian counterpart Hari Puttar which tried to encash on the Harry Potter brand was quickly shut down by lawyers who were responsible for protecting the brand value of the Harry Potter franchise.
Brand management also involves anti-counterfeiting strategies. Lawyers convert legal concepts into enforceable rights and commercially valuable assets.
Xerox is much more than a photocopier company. It had a huge portfolio of around 8000 patents to its credit but it often failed to take action against infringement by competitors. Big corporations tend to have massive intellectual property asset bases which require professional management which usually lawyer tend to offer. This includes global infringement monitoring services and identifying monetization opportunities.
GE is a company which also has a massive portfolio of exciting patents, but it is very serious about protecting and monetizing them. This has been attracting value investors towards GE stocks as they expect the amazing IP portfolio to give amazing results in near future.
Intellectual property lawyers look after legal-commercial strategies enabling planning regarding portfolio creation and management, licensing the technology
Enforcement of IP
Enforcement of agreements and IP rights through strategic litigation is the most lucrative practice for IP lawyers. It is also the area where more new and best-paid jobs are arising in the industry.
Work can range from coming up with strategies to bring an action against breach of confidential information, holding infringing parties to account, taking credible action against breach of trade secrets, defending claims of IP infringement, preventing misuse of IP rights by vendors, distributors are others who may get access to valuable IP etc.
Lawyers help in creating risk mitigation strategies
In the pharma sector, Johnson & Johnson recently not only called back its disputed batch of drugs but also redesigned its policies as well as the vision to ensure the highest form of integrity and quality. What role do you think lawyers played in this?
A team of IPR lawyers works with the top management to develop powerful strategies in such cases where the company is dealing with regulatory breaches or posing a threat to the company’s brand image. They have to come up with risk mitigation strategies to deal with the immediate situation as well as come up with prevention strategies for the future of the organization.
Fortune 500 companies are risk-averse in nature. Even if you ignore the expenses and time involved in litigation, there is negative publicity attached with opting for litigation. IPR lawyers advise on preparing pre-litigation and settlement strategies as well as aggressive litigation strategies where required.
Are you a lawyer with any science degree?
Well, you can work your way to becoming a patent agent after clearing the patent agent exam. Any science graduate can become a patent agent by clearing the exam, and one does not need a law degree for the same. However, for obvious reasons, lawyers have a significant advantage in building a patent law practice as they do not only do filing but can help with a much wider range of services.
Did you hear that Apple has filed a new patent application with USPTO last month on the concept of a foldable iPhone?
Well as a patent attorney, drafting and filing patent applications for inventors and scientists is your mojo. Managing and advising on patent portfolio also forms a key advisory area for patent attorneys.
Depending on your experience and expertise you might have to work with an international clientele for filing and prosecution in foreign offices.
However, as a lawyer, you are likely to go much beyond drafting and filing patent applications and work on patent litigations and prosecution cases.
Where should you work as an IP lawyer?
The best IPR Law firms are mostly boutique law firms. They can have smaller teams in comparison with say a corporate transactions team of a tier 1 law firm. Big law firms also have IPR teams, but they are usually small and often gets paid far less than the corporate lawyers in the firm.
Most companies require IP lawyers, if not specialized ones then at least general in-house lawyers who also have to do IP work. In sectors like media and entertainment, technology, pharmaceuticals, biotechnology, sports and broadcasting, movies, music, publishing etc. IP lawyers are in great demand and these companies often require large IP law teams.
There are large IPR, technology, competition law and internet related thinktanks that need to hire IPR lawyers in large number for research and policy-related work.
IP litigation is steadily on the rise, especially when it comes to trademark-related disputes. Patents and copyright prosecutions and disputes are also on the rise. It is the best time in history to be IPR litigator, also because most IP lawyers are concentrated on other kinds of work.
IP Monitoring services
In recent times IP rights monitoring services have become very prominent and profitable. Large MNCs and IP owners appoint monitoring agencies all over the world whose job is to keep a check on who is misusing such intellectual property and taking legal action to recover any illegal profits and prevent further misuse of copyright, trademark or patent. They prevent counterfeit products, catch illegal copies, detect misuse of copyright and then take legal action as per pre-approved mandates. A large number of lawyers can get employment in such IP monitoring service providers.
How to approach IP law as a career if you are interested
You will see two kinds of aspiring IP lawyers in the job market. One breed of IP aspirants will be extremely focused about IPR. they will start building their CV around IPR during their law school itself. You will either find a lot of IP focused internships. Their experience will range from a trademark team of a law firm to the legal department of an FMCG company.
They would probably have industry-focused certifications, workshops, and conferences on their resume. Writing a few research papers and online legal blogs is appreciated when you sit for the interview. Basically, there are lawyers who have been interested in IPR for a while and can demonstrate the same based on the history of their activities which are worthy of being mentioned on one’s resume.
There is another class of IP lawyers who choose IP as their last resort. You may or may not find a couple of IP internships during their law schools in their CV, but they claim to be very interested in IP when they apply for IP jobs. This is very problematic. If you say you are interested in IP, there better be enough in your CV that proves the same.
The best way to do so is to write and publish at least a dozen high-quality articles on IP law and publish them on credible internet platforms where IP lawyers are likely to read them.
Also, start attending events related to IP lawyers and take up practical IP law-oriented courses which can speed up your growth and understanding of IP law work.
The placement scenario is changing for the Good
The salary you might command while starting out is subjective.
The reputation of your college matters but law firms have become a lot flexible in terms of hiring and retaining talent. Even our students from KIIT law school have bagged placements with tier 1 IPR firms through smart planning and focused internships during law schools.
Law firms like Wadia & co. have a system wherein they offer assessment internships for 3 months. You work and report under a senior associate or the partner during the period of internship. Your chances of bagging the job are based on your performance.
Tier 1 IP law firms may offer starting salaries around 50-70 k per month while smaller law firms may offer anything between 20k-50k per month. Law firms will pay better if you have previous IP litigation experience because that is the most in-demand skill right now.
Your focus must be on acquiring the right skills rather than the salary numbers in your formative years. The potential to earn astronomical sums is very much present provided you can deliver results to clients.
There is a lot of churning in terms of IP recruitment
There is a lot of turnover in the IPR job market. Bright law students join a law firm and switch in 1 to 1.5 years to another firm or another area of practice.
Law firms are aware of the churning going on in the market. Therefore, they offer attractive performance-based appraisals in the range of 25-30% after 1 year onwards.
Rewards lie ahead if you are willing to give your career the time it deserves
The first 4 years in the niche IPR practice area is extremely critical for anyone wanting to become an indispensable part of his law firm team but also the IPR industry. You progress to become a senior associate, work closely with law firm partners. You will also have enough opportunities to strike out on your own and establish your own practice. The prospects of making a name for yourself in the industry are quick as it is a close-knit community, provided you can deliver high quality work consistently.
Top sought after skills
Pay special attention to communication skills
Your communication skills play a key role especially in a field like IPR. What if you are seeking an injunction in a trademark prosecution trying to convince the appellate authority about the pre-existing reputation of your trademark? Your ability to convince lies purely on how succinctly you are able to communicate to the court about your legal position. The same applies to negotiation situations. Even within your own team, things will get tough if your communication skills are poor.
Don’t undervalue the importance of legal writing
Likewise, your drafting skills and written communication also plays a crucial part in your success in the legal profession, It’s a sad irony that legal writing is an undervalued and often ignored skill in law schools. Your success in drafting cease and desist notices, takedown notices, writing and negotiating balanced contracts depend upon how well you structure your written communication.
Law firms expect you to be conversant with the procedure
See, knowing the basics of IPR law is not rocket science. The Acts are easy to understand and smaller in volume too. Students and young law graduates often feel cheated when they realize the huge gap that exists between theory and practice.
Everyone is taught the theory of trademark registration. However, it’s very important to know about the procedure for registration. Whether to file a single class application or a multiclass application for your product is not something you dwell upon in law school.
Focus on practically learning the procedures during the internships and courses you undertake. You must know about the basic useful stuff like performing prior art searches, freedom to operate searches, trademark searches. You will be able to bring awesome value by the time you start working in a law firm.
Keep abreast with the latest developments, reading is crucial
Reading the latest judgments and constantly learning on the go is crucial. Keeping yourself up to date with regulatory and policy developments around IPR, writing blogs, Keeping abreast with the latest innovation are certain basic traits that you must imbibe in your day to day working as an IP professional.
You can check out the other courses you may find relevant:
- Diploma in Entrepreneurship Administration and Business Laws
- Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution
- Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions)
- Diploma in Companies Act, Corporate Governance and SEBI Regulations
Executive Certificate Course
- Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting
- Certificate Course in Advanced Corporate Taxation
- Certificate Course in Real Estate Laws
- Certificate Course in Arbitration: Strategy, Procedure and Drafting